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Property Rights: The Key to Environmental Protection

A chapter from A Breath of Fresh Air: The State of Environmental Policy in Canada, edited by Nicholas Schneider.

The importance of private property rights in a market economy is widely understood. Property rights play a critical role in motivating and organizing economic activity, and in adjudicating disputes. The free exchange of private property is credited with facilitating cooperation among individuals with widely varying interests, and encouraging adaptation to changing circumstances. Secure rights are also valuable because they increase confidence in returns and strengthen incentives to invest, fuelling economic growth. As summed up by one legal scholar, “ It is generally agreed that a system of private property helps to bring about economic prosperity” (Sunstein, 1993: 911)

Less commonly appreciated is the role property rights play in protecting the environment. Secure property rights provide both powerful incentives for the preservation of natural resources and effective tools to resolve differences over resource use. Although the Canadian judiciary has traditionally been committed to protecting property rights, few governments (federal or provincial) have acknowledged the importance of such rights or have allowed them to thrive. Indeed, successive governments have systematically overridden property rights to the detriment of both the economy and the environment. Because of their economic and environmental value, environmental policies that restore, protect, and strengthen property rights are likely to create considerable benefits.

Other chapters in this book address the merits of establishing property rights in natural resources. This chapter focuses on the need to restore the common-law property rights that have empowered people to protect the quality of their air, land, and water for centuries. Although it proposes a number of means to this end, it advocates one principal reform: the enshrining of property rights in the Canadian Charter of Rights and Freedoms.